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Fitzgerald v. Finnegan

Decided: February 14, 1950.

AGNES B. FITZGERALD, PLAINTIFF-RESPONDENT,
v.
MARTIN J. FINNEGAN, DEFENDANT-APPELLANT



McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

Plaintiff's action for unpaid rent alleged to be due her by defendant was originally instituted in the District Court of the Second Judicial District of the County of Bergen. Subsequent to the filing of defendant's answer and counterclaim, he made application for and obtained an order transferring the action to the then Circuit Court, on the ground that his counterclaim was for an amount in excess of the limited jurisdiction of the District Court. A trial before the Superior Court, Law Division, resulted in a directed verdict for plaintiff and against defendant in the sum of $476.19, and a directed verdict in favor of defendant against plaintiff on his counterclaim in the sum of $112.06, whereupon judgment was entered in favor of plaintiff against defendant for the net sum of $364.13. Defendant appeals from the judgment entered.

Before engaging upon any discussion or determination of the merits of defendant's several grounds of appeal, we deem it essential to point out several infractions of the Rules by defendant, viz.:

Defendant has failed to print as part of his appendix the judgment of the trial court, as required by Rules 1:3-1 and 4:3-1.

Violation of Rules 1:3-2 (f) and 4:3-1, in that he did not number every tenth line on each page of the appendix, nor did he state the date of filing each paper printed in the appendix

at the head of the copy, nor did he comply with that part of the Rule that "* * * At the top of each page * * * with respect to evidence the name of the witness and whether the examination is direct, cross or redirect" must be stated.

Non-compliance with Rules 1:3-8 and 4:3-1, requiring that where portions of the record are referred to in a brief, "* * * reference shall be made to the lines and pages of the appendix or brief where they may be found." All such references in defendant's brief are to the "transcript."

Defendant's brief and appendix do not comply with Rules 1:3-9 and 4:3-2. Each exceed twenty pages and are required, therefore, to be printed in conformity with Rule 1:3-9 (a). Defendant has violated the Rule in the following particulars: five pages of the brief are printed and the balance thereof, as well as the entire appendix, are typewritten; the pages of both the brief and appendix exceed the size prescribed by the Rule; both the brief and appendix are prepared on white paper, rather than India eggshell, opaque and unglazed paper as required by the Rules. No application was made by defendant to permit the filing of the brief and appendix in the form in which they were submitted.

The most serious violation was defendant's failure to file a complete transcript of the stenographic record of the proceedings before the trial court, as required by Rule 1:2-4. The court reporter's affidavit, submitted by plaintiff, states that the defendant requested only certain portions of the record to be transcribed; that the part transcribed comprises only about fifty per cent of the entire record taken by him; that it does not contain copies of any exhibits, approximately fifteen in number. We have examined the portions of the transcript filed by defendant and find that it includes only portions of the direct and cross-examination of plaintiff's witness, Maxwell Goldburgh, and only portions of the direct testimony of defendant and his witness, Harry McDonald, and no part of their cross-examination. Nor does the transcript include any of the testimony of the defendant's witness, Esther Finnegan. Rule 1:2-4 (d) requires the filing of a transcript of the entire proceedings except where, under

Rule 1:2-22, an abbreviated transcript of the proceedings may be filed under the conditions therein set forth. Paolercio v. Wright , 1 N.J. 121 (Sup. Ct. 1948) holds:

"The first applies for a construction of rule 1:2-4 (d) relating to the preparation of the transcript in which a stenographic report of the evidence or proceedings was taken. The rule is clear and ...


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